### IN THE UNI TED STAT ES COURT OFAPPEALS FOR THE FIF TH CIRCU IT

No. 12-40103 Summary Calendar

UNITED STATES OF AMERICA, Plaintiff - Appellee

v. OMAR ARELLANO-GONZALEZ, Defendant - Appellant

Appeal from the United States District Court for the Southern District of Texas USDC No. 5:11-CR-1184-1

Before DAVIS, BARKSDALE, and ELROD, Circuit Judges. PER CURIAM: * Omar Arellano-Gonzalez appeals the sentence imposed pursuant to his guilty-plea convi c ti on for illegal reentry into the United States after deportation. He contends: the sentence was substantively unreasonable because the district court imposed a three-year term of super v i s e d release without explanation, notwithstanding that adviso ry s e nt e n c i n g G u i d e li n e § 5 D 1

. 1 (c) s t ates supervised release should ordinarily not be imposed on a deportable alien; and the sentence

was procedurally unreas o n ab l e because the court provided no explanation for U n i te d S ta te s C o u rt o f A p p ea l s

F i ft h C i rc u i t 

### F I L E D Janu ary7, 201 3 Lyle W . Cayce Clerk

Purs uant to 5 T H C IR

. R. 47.5 , the cour t has d ete rm inedt hat this op inion sho uld not * be publ ish ed and is not pr ece dent excep t unde r the lim ite d cir cum st ance s se t for th in 5 T H C IR

. R. 47.5 .4. Case: 12-40103 Document: 00512103723 Page: 1 Date Filed: 01/07/2013No. 12-40103

imposing supervised release, and did not provide notice o f i ts intent to depart from the advisory Guidelines sentencing range. Although post- Booker , the Sentencing Guidelines are advisory only, and

a properly-preserved objection to an ultimate sentence is revie w e d for reasonablen e s s under an abuse-of-discretion standard, the district court must still properly calculate the Guideline-sentencing range for use in deciding t he sentence to impose. Gall v. United States , 5 5 2 U.S. 38, 51 (2007). In that respect, for issues preserved in district court, its application of the Guidelines is reviewed de novo ; its factual findings, only for clear error. E.g. , United States v. Cisneros-Gutierrez , 517 F.3d 751, 764 (5th Cir. 2008); United States v. Villegas , 404 F.3d 355, 359 (5th Cir. 2005). As Arellano concedes, he f a i l e d t o r a ise his procedural-error contention in district court; therefore, review is only for plain

error. United States v. P e l t i e r , 505 F.3d 389, 392 (5th Cir. 2007). To show

rever sible plain error, Arellano must show, inter alia , forfeited error that was clear or obvious. Puckett v. United States , 556 U.S. 129, 135 (2009). He fails to do so. The term of supervised release imposed on Ar e llano was within the statutory and advisory Guidelines sentencing range for his offense of conviction; therefore, despite the language of Guideline § 5D1.1( c ) , i t d oes not trigger a “departure analysis”. See United States v. Dominguez-Alvarado , 695 F.3d 324, 329 (5th Cir. 2012). T h e r e f ore, the court was not required to give notice of its possibly imposing supervised release. See id. Further, the district court was aware of the provisions of Guideline § 5D 1

. 1 (c) because they were set out in the presentence investigation report, which the court adopted. Given the court’s co n s i dering at sentencing both Arella n o ’ s r e quest for a lenient sentence and his violent criminal history and alcohol-abuse problems, Arellano fails to s h o w the district court procedurally erred in declining to explain its imposing supervised release. See id. at 329-30. Indeed, Guideline § 5D1.1, comment 3(C), states “it is highly recommended that
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a term of supervised release [] be i m p o s e d” where, as here, defendant has a history of drug or alcohol abuse. Arguably, Arellano’s contention that the imposition of supervised release is substantively unreasonable was not properly preserved and, th e r e f o r e , s ubject to plain-error review. In any event, under the more lenient abuse-of-discretion standard, the contenti on fails. Because the supervised release was within the advisory Guideline s s e ntencing range, our court applies a presumption of reasonableness and infers the district court considered all pertinent sentencing considerations in imposing the sentence. United States v. Mares , 402 F.3d 511, 519 (5th Cir. 2005) (“When the judge exercises [his] discretion to impose a sentence within the [advisory] Guidelines [sentencing] range and states for the record that [he] is doing so, little explanation is required.”). AFFIRMED.

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